ETHICS COMMISSION ISSUES OPINION IN COMPLAINT AGAINST BARRY WATERMAN
Recusal in Two Matters and in Other Decisions
Stating that Mr. Waterman, his wife, parents or entities in which they have a financial interest own approximately 45 parcels in Queen Anne’s County, the Ethics Commission ordered Mr. Waterman to recuse himself in two matters that are currently within the scope of discussion and review by the Planning Commission, namely, the Queenstown Comprehensive Plan and issues related to sewer along route 8 on Kent Island.
The Ethics Commission further stated that land-use decisions by the Planning Commission that do not directly involve properties owned by Mr. Waterman, his family or their financial entities nevertheless can set precedents that could affect the value of Mr. Waterman’s properties. To remedy these potential conflicts, the Commission ordered Mr. Waterman to “cease and desist, by recusing himself from any discussion, any decision or any activity on any other matter before the Queen Anne’s County Planning Commission . . . which will have, or reasonably could be believed by an informed member of the public to have, a direct financial impact, as distinguished from the public generally, on Respondent or a member of his family or on a business in which he or a member of his family has an interest.”
Recusal Involving “Prestige of Office” and Confidentiality
The Commission also ordered Mr. Waterman to recuse himself from any discussion, decision, or any other activity in which an informed member of the public reasonably could believe that he used the prestige of his office or confidential information acquired in that office for his or others’ personal gain.
Recusal Challenges for Mr. Waterman as a Member of the Planning Commission
The Ethics Commission observed that “the scale of Respondent’s property ownership in the area, as well as that of other family members, dramatically multiplies the financial interests and, thus, is meaningfully distinct from someone owning a single built-out parcel as a residence.”
Further, “the appearance of a conflict of interest can be cured by recusal only if that remedy is invoked by Respondent in a generous fashion to a situation in which an informed member of the public could reasonably reach this conclusion � whether or not Respondent himself believes the conclusion is reasonable.”
The Ethics Commission stated that “…if recusal is to be an adequate remedy, it is imperative that Respondent remains constantly vigilant and sensitive to both the actual and apparent conflicts of interest as to the groups of properties that may be inherent in ANY particular land-use question that comes before the QACPC.”
The complaint was filed by nine citizens and Ethics Matters following the appointment to the Planning Commission of Barry Waterman, notwithstanding the Ethics Commission‘s advisory opinion (10-01) that Mr. Waterman’s service on the Planning Commission would be a violation of the Ethics Law. In their complaint, the citizens and Ethics Matters noted Mr. Waterman’s conflicts of interest and asked for a strict interpretation of the section of the Ethics Law that prohibits holding conflicting financial interests while serving on the Planning Commission. Citing a “recognition of the need for citizens possessing technical knowledge to serve on the Planning Commission,” the Ethics Commission noted that “ with a rigorous application of the Ethics Law to each decision in which Respondent participates and recusal where appropriate to prevent the appearance of, or actual, conflict of interest, Respondent may continue to serve on Planning Commission.”
Ethics Matters questions this rationale for a recusal-only result. Even assuming such a need for “technical knowledge,” a person who develops in another county or has retired from development in our County could meet the claimed need without presenting conflicts of interest. Ominously, the Ethics Commission itself admits it is not hopeful that “a rigorous application of recusal actually will consistently occur, based on Respondent’s posture on various matters during the investigative and hearing process.” It sounds like the public’s trust is not assured but will have to be protected by vigilant citizens and Planning Commission members during Mr. Waterman’s tenure on the Planning Commission.
Ethics Matters has filed a request to the Ethics Commission for clarification of what the Commission understands to be required of the respondent when recusal is necessary. The complete opinion in this complaint, Opinion 10-01, is available at Ethics Matters’ website www.ethicsmattersinc.org under Opinions. The Ethics Matters letter requesting clarification of recusal follows below.
Ethics Matters, Inc.
www.ethicsmattersinc.org ~ firstname.lastname@example.org
December 9, 2010
Dear Ethics Commissioners,
Pursuant to your opinion in Complaint No. 10-01, would you be good enough to provide clarification on several questions? Exactly what does it mean to “recuse” oneself? That word does not appear in the County’s Ethics Code, and it would be helpful to all concerned to know just what a “recusal” requires. The dictionary defines “recuse” generally as removing oneself from participation due to a conflict. Just what does that involve?
· Should the person who is recusing leave the room when a conflicting matter is under consideration by the Board or Commission so his/her presence will not influence/intimidate those discussing and making a decision?
· Are “discussions, decisions or any other activities” on matters with conflicts or apparent conflicts prohibited with staff/counsel and other Planning Commission member(s) at any time and place, not just in connection with Commission meetings?
There are a couple other clarifications that would be helpful.
· Is a person who is on a Board or Commission considered a member of that body in all circumstances? Can they identify themselves to another governmental body or member of another governmental body as speaking as a private citizen and then go on to discuss or advocate on a matter where a conflict exists or appears to exist as a Board or Commission member?
· In trying to understanding “prestige of office” � do discussions or activities on matters where a conflict is actual or apparent with a County Commissioner(s), members of the Public Works Advisory Committee or Board or other County Agencies amount to a misuse of “prestige of office”? How about State Agencies like Roads?
Thank you for any clarification you can provide on these questions.